Monday, April 27, 2009

The following Open Records Decisions were issued by the Office of the Attorney General on April 24, 2009:1. 09-ORD-067 (Jefferson County)Jefferson County Division of Probation and Parole properly denied request for information obtained by parole officer, and investigative reports generated by her in discharging her official duties, on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Although the division admittedly violated KRS 197.025(7) in failing to issue a written response within five business days, the agency's ultimate disposition of the request was entirely correct.

2. 09-ORD-068 (Marion County)Marion Adjustment Center properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying inmate's request as the record(s) being sought do not contain a specific reference to him.

3. 09-ORD-069 (Mercer County)Northpoint Training Center did not violate the Open Records Act in declining to provide copies to requester without prepayment of reproduction charges. In accordance with KRS 61.874(1) and applicable precedent, the denial is affirmed.

4. 09-ORD-070 (Oldham County)Roederer Correctional Complex did not violate Open Records Act in failing to respond to a request that was not successfully transmitted to it, and otherwise properly disposed of issues on appeal by furnishing requester with the only existing record responsive to his request.

Monday, April 20, 2009

The following open records decisions were issued by the Office of the Attorney General on April 14-17:

1. 09-ORD-063 (Franklin County)Kentucky State Police properly relied on KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), in denying a request for sex offender registration forms.

2. 09-ORD-064 (Wayne County)Monticello Banking Co. is not a public agency for open records purposes, and its records are not subject to the Open Records Act. It therefore did not violate the act by denying a request for a decedent's loan records.

3. 09-ORD-065 (Franklin County)The Kentucky Labor Cabinet properly denied access to requested file as the subject investigation is not complete nor has the agency taken any final action. Until such time as the Cabinet adopts the notes, drafts, and correspondence with private individuals, or the recommendations and memoranda in which opinions are expressed or policies formulated as the basis of a final action, those documents retain their preliminary status under KRS 61.878(1)(i) and (j), respectively. Cabinet also properly declined, alternatively, to honor "standing request."

4. 09-ORD-066 (Jefferson County)University of Louisville did not violate Open Records Act in failing to respond to requests that were unsuccessfully transmitted to a nonexistent email account. Because requests did not reach the university, no error can be assigned to it under KRS 61.880(1).

Monday, April 13, 2009

The following open records decisions were issued by the Office of the Attorney General on April 7:

1. 09-ORD-061 (Floyd County)Decision adopting 08-ORD-084 and holding that private ambulance service is not a public agency for open records purposes even though it derives some state funding from Medicaid reimbursement.

2. 09-ORD-062 (Kenton County)Decision adopting 01-ORD-136 and 08-ORD-171; Elsmere Police Department subverted the intent of the Open Records Act within the meaning of KRS 61.880(4) by charging 15 cents per page for copies of public records. Unless the agency can substantiate that its actual cost of reproduction is greater than 10 cents per page, imposition of any fee in excess of that amount is not authorized under Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and prior decisions of this office.

Monday, April 6, 2009

The following opinion and open records/meetings decisions were issued by the Office of the Attorney General March 31-April 3:

1. OAG 09-003In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2009 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, June 25, 2009, since 90 full days will then have passed after final adjournment on March 26, 2009.

2. 09-OMD-056 (Warren County)Three employees of Bowling Green Municipal Utilities acting within the scope of their employment were not constituted as a “committee” that was “established, created, and controlled” by a public agency, the Open Meetings Act does not apply. KRS 61.805(2)(g) does not apply.

3. 09-ORD-057 (Mercer County)Northpoint Training Center did not violate Open Records Act by not providing copies of policies and procedures to an inmate when the documents did not contain a specific reference to him, as provided in KRS 197.025A(2), or addressed security and control of inmates and facilities, as provided in KRS 197.025(6).

4. 09-ORD-058 (Franklin County)Education and Workforce Development Cabinet violated KRS 61.880(1) in failing to issue a timely written response to open records request. Cabinet failed to meet its statutory burden of proof relative to invocation of KRS 61.872(6) and 3 of 7 records requests. Cabinet honored two of the requests and properly denied the remaining requests.

5. 09-ORD-059 (Franklin County)Cabinet for Health and Family Services cannot produce nonexistent records for inspection or copying nor does it have to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 340-341 (2005). In accordance with 09-ORD-022, agency's denial as to six categories of records withheld on the basis of 45 CFR § 2.3, incorporated into the Act by operation of KRS 61.878(1)(k), is affirmed. CHFS properly redacted information from certain documents per KRS 61.878(1)(a) and KRS 620.050(11). With exception of procedural violations, agency complied with the Act.

6. 09-ORD-060 (Franklin County)The Office of the Governor violated KRS 61.880(1) in failing to respond to three separate requests for records relating to an efficiency study. Records belatedly disclosed to requester related to a spending analysis report, and Governor's Office maintained that no additional responsive records existed because no efficiency study was conducted.